Ontario Human Rights Commission Comment to the Ontario Ministry of Labour Regarding Canada’s 2012 ILO (International Labour Organization) Article 22 Report on Discrimination (Employment & Occupation) Convention 111
May 30, 2012
This submission outlines recent developments for the reporting period June 1, 2011 through May 31, 2012 related to discrimination in employment and the Ontario Human Rights Commission’s (the OHRC) mandate. It includes OHRC activities, recent case law and comment regarding relevant ILO Committee observations and direct requests.
Social origin and political opinion
The ILO Committee once again made a recommendation to amend human rights legislation to include social origin or “social condition” and political opinion as prohibited grounds of discrimination in employment and occupation, and to provide information on concrete steps taken in this regard.
As indicated in its 2011 comment, the OHRC is willing to examine the implications of including “social condition” as a prohibited ground of discrimination under Ontario’s Human Rights Code (the Code). However, to date, the Ontario Government has not made any request or given any direction in this regard.
In 2012, the OHRC released a new publication that once again recognizes the strong link between low social and economic status and membership in Code-protected groups, and, recalls that the Government of Ontario has acknowledged the connection between poverty and human rights under Section 2.(2)3 of the Poverty Reduction Act, 2009.
The OHRC also made a submission to the Commission for the Review of Social Assistance in Ontario regarding its interim reports, raising issues related to the links between Code grounds, poverty, social assistance and employment supports. It is anticipated that the Commission for the Review of Social Assistance in Ontario will submit its final report to government this summer.
The Ontario Human Rights Code does not include “political opinion” or belief as an enumerated ground of discrimination. The Court of Appeal for Ontario has previously found that political opinion alone would not be considered a creed under the Code.
Earlier this year, the OHRC held policy and legal dialogues as part of a process to update its Policy on Creed and the Accommodation of Religious Observances. Papers presented at the dialogues (to be published later this year), as well as the OHRC’s Creed Case Law Review, examine “political opinion” alongside other definitions and concepts including creed, freedom of religion, freedom of expression and other forms of opinions and beliefs.
The OHRC continues as a member of the Law Commission of Ontario’s Advisory Group supporting the LCO’s development of a framework tool, released in draft form this spring, to guide government in the drafting of legislation, regulations, policies and programs so that they are inclusive of the rights of persons with disabilities.
In a joint press release issued last December, the OHRC and other human rights commissions across Canada called on governments at all levels to meet their obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) including promoting and protecting employment rights.
The OHRC and other commissions met with national disability organizations including the Council of Canadians with Disabilities and the Canadian Association for Community Living to discuss how commissions might work together to monitor implementation of the CRPD and report on results. With their input, the OHRC developed a brochure to promote the CRPD in Ontario and across Canada.
Following important changes to the work reintegration policies of the Workplace Safety and Insurance Board (WSIB), the OHRC continued to work with the WSIB and other groups to promote understanding of the duty to accommodate disability under the Ontario Human Rights Code. The OHRC is also intervening in the case of Seberras v. Workplace Safety and Insurance Board, where the applicant claims section 13(5) of the Workplace Safety and Insurance Act and WSIB policies are discriminatory because they treat workers with “mental injuries” differently compared to workers with physical injuries.
Ontario Integrated Accessibility Regulation
The Integrated Accessibility Standards Regulation, under the Accessibility for Ontarians with Disabilities Act (AODA), became law on July 1, 2011. It includes a broad range of phased-in requirements for employers including a requirement to train staff on the rights of persons with disabilities under the Ontario Human Rights Code. This has led to a partnership between the OHRC, the Accessibility Directorate of Ontario and Curriculum Services Canada to develop an e-learning module about the complementary nature of rights and obligations under the Code, the AODA and its regulations. The module will set out human rights principles for implementing AODA standards. It is anticipated that the Ontario Government will release the e-learning module later this year.
Disability and mental health
The OHRC is currently drafting its report following a multi-year consultation on mental health discrimination. The report is anticipated for release later this year and will comment on what the OHRC heard about mental health discrimination in employment, among other areas; if there are laws, policies or systemic practices that disadvantage people with mental health or addiction disabilities; and, what can be done to promote and protect rights, including recommendations to government. That information will form the core of a new OHRC policy on human rights and mental health anticipated for release in 2013.
The OHRC has been working closely with the Mental Health Commission of Canada throughout its initiative and has provided training to staff at the Centre for Addiction and Mental Health on human rights and mental health in employment. The OHRC worked with the Canadian Mental Health Association to include human rights principles in their Mental Health Works employment training materials and resources. The OHRC also provided training to adjudicators and administrators from over 15 different boards and tribunals on applying the Code when addressing the needs of people with mental health issues and addictions.
In partnership with the Great-West Life Centre for Mental Health in the Workplace and other human rights commissions across Canada, the OHRC participated in a one-day forum to discuss human rights in employment for people with mental health or addiction disabilities.
Following settlement of human rights complaints against the Toronto Police Services Board in 2010, the OHRC worked with the Ontario Association of Chiefs of Police to support the development and release in July 2011 of their new Guideline on Police Record Checks. The Guideline has been endorsed by police services, mental health advocates and vulnerable sector agencies alike as a positive step forward to help minimize the adverse effect of police record checks on employment opportunities for people with mental health disabilities – although many groups agree there are related issues that still need to be addressed.
Disability and labour force participation and unemployment rates
The OHRC is continuing its work on two data projects with Statistics Canada and support from the Canadian Human Rights Commission, examining the level of equality experienced by persons with disabilities across socio-economic indicators including in employment and occupations.
A preliminary review of data prepared for the OHRC, based on the 2006 Census, indicates that people with disabilities are less likely to be in the labour force (employed or actively looking for a job) compared to the rest of the population. Of those in the labour force, people with disabilities, especially those with mental health or addiction disabilities, are more likely to be unemployed. The OHRC plans to publish the data in the coming year.
Barriers to recognition of foreign qualifications
Following the Chartered Management Accountants of Ontario (CMA) elimination in 2011 of its Canadian experience requirement under a Mutual Recognition Agreement with the United Kingdom Chartered Institute of Management Accounts (CIMA UK), the OHRC continues to pursue other concerns related to university equivalency requirements. The OHRC is currently reviewing public reports prepared by CMA Ontario under its reporting obligations to Ontario’s Office of the Fairness Commissioner.
The OHRC has also been meeting with other groups regarding other types of discriminatory barriers that can result from Canadian experience requirements. The OHRC intends to release a new policy and guide on this issue in the coming year. It will set out how to avoid and address discrimination caused by unwarranted accreditation or other requirements placed on persons born, educated or trained abroad.
The OHRC continues to build relationships with Aboriginal organizations and the Ontario Ministry of Aboriginal Affairs to exchange information and promote learning about human rights.
The OHRC is reaching out to other groups and, for example, participated in a two-day educational workshop on the Nippising First Nation reserve, hosted by the Union of Ontario Indians for its affiliates, in partnership with the Canadian Human Rights Commission. The workshop focused on preparing First Nations governing authorities for the repeal of section 67 of the Canadian Human Rights Act as well as an introduction to the Ontario Human Rights Code.
The OHRC is also working with the Truth and Reconciliation Commission of Canada to explore ways that reconciliation and human rights intersect and how we can help eliminate barriers and discrimination that affect Aboriginal peoples.
The OHRC is currently updating its brochure on Aboriginal peoples and the Ontario Human Rights Code which will again be available in English, French, Mohawk, Cree and Ojibway.
Following on its successful project charter with Toronto Police Services, the OHRC has produced a new guide, Human Rights and Policing: Creating and Sustaining Organizational Change. The OHRC is now involved in a multi-year project with Windsor Police Services and the Ontario Police College  applying a human rights lens to services as well as internal staffing, including more inclusive recruitment outreach, performance management requirements, training and data collection. Because many non-policing organizations are using the guide as well, the OHRC is drafting a broader version for release later in the year.
The OHRC is working to promote and enforce human rights in Ontario’s correctional system. In August 2011, the OHRC settled the longest-running human rights case in Canadian history. The case of Michael McKinnon v. the Ontario Ministry of Correctional Services concerned discrimination on the basis of Aboriginal ancestry and has become the leading Canadian case on human rights remedies in race discrimination. Earlier decisions found Mr. McKinnon, a jail guard, experienced discrimination including a poisoned work environment and failure on the part of the employer to address the problem.
Following the settlement, the OHRC entered into a three-year project charter agreement with the Ministry of Community Safety and Correctional Services to ensure that long term systemic initiatives addressing discrimination in employment and services across all grounds of the Code are further developed and properly implemented.
The OHRC also hosted “Human rights from A-Z,” a one-day training event in Kingston Ontario in partnership with the City of Kingston, Queens University and the Canadian Coalition of Municipalities against Racism and Discrimination (CCMARD). The event, and CCMARD, a UNESCO initiative,  include a focus on addressing employment discrimination.
A number of initiatives are informing the OHRC’s upcoming revision to its 1996 Policy on Creed and the Accommodation of Religious Observances, including in employment. This past year, the OHRC issued requests for papers and presentations and in January 2012 hosted a policy dialogue on creed rights in partnership with the University of Toronto’s Multi-faith Centre and Religion in the Public Sphere Initiative. Papers produced for the event will be published by the Association of Canadian Studies in an upcoming issue of Canadian Diversity Magazine.
The OHRC also published a case law review of creed rights, including in employment, and in March hosted a legal workshop on creed rights in partnership with York University’s Centre for Law and Public Policy and Osgoode Hall Law School.
Gender equality and sexual harassment
As part of the its three-year project charter with the Ministry of Community Safety and Correctional Services (see above), the OHRC recently began delivering training sessions, on preventing and addressing sexual harassment, with senior management responsible for employment and service in the province’s correctional institutions.
As identified in Canada’s last report to the ILO on Convention 111, the Canadian Labour Congress has recommended adding “LGBT” (lesbian, gay, bisexual and transgender) as a new designated group under the Federal Employment Equity Act.
In Ontario, the OHRC continues to support efforts by various groups to have gender identity added as a protected ground under the Ontario Human Rights Code, including protection from discrimination in employment. While OHRC policy and now case law interpret the ground of “sex” to include gender identity, recognizing this explicitly would send a strong message that transgender persons must enjoy the same human rights protections as all other Ontarians.
Early in 2012, Private Members Bill 33 “Toby’s Law” was introduced in the Ontario Legislature with some support across all parties. The Bill would amend the Code to add “gender identity” and “gender expression” as protected grounds of discrimination in all social areas including employment. The Bill has received Second Reading and was referred to a Legislative Committee but no hearings have been scheduled to date.
Competing human rights
The OHRC has released its new Policy on Competing Human Rights following research, public consultation, case law review and litigation, such as the Ontario Divisional Court’s 2010 decision in Ontario Human Rights Commission v. Christian Horizons. That decision found Christian Horizons, a faith-based charitable organization, was providing a secular public service, and infringed the rights of an employee who was in a same sex relationship. This case and others show just how difficult it is to strike a balance between different rights.
The OHRC’s new policy will help employers and services providers deal with everyday situations of competing rights and avoid litigation. When necessary, the policy may also give guidance to the Human Rights Tribunal of Ontario and the courts for dealing with cases where litigation is unavoidable.
The OHRC intervened at the Federal Court in Seeley v. CN, an application for judicial review of a decision of the Canadian Human Rights Tribunal. The Tribunal had found that CN Rail discriminated against Ms. Seeley by requiring her to relocate without considering her obligations as a parent. The OHRC argued that the test for discrimination on the basis of family status is the same as for any other ground of discrimination and emphasized that as childcare obligations disproportionately fall on women, a more onerous approach to establishing discrimination on the basis of family status would be a barrier to women’s equality The Court has not yet released its decision.
Human rights enforcement
Seventy five percent or more of human rights complaints filed at the Human Rights Tribunal of Ontario (HRTO) raise allegations of discrimination in employment.
Earlier this past year, the OHRC was asked whether the HRTO should be given the right, or use its discretion under the Statutory Powers Procedure Act (SPPA), to require a fee or allow costs for human rights applications. Guidelines published by the UN Office of the High Commissioner for Human Rights state that the complaint process should be free of charge. The OHRC supports this and believes fees and awarding of costs will deter disadvantaged groups and individuals from accessing the human rights system. Complainants should not be required to incur direct or indirect costs. As stated in the SPPA, costs might only be considered in situations where a party’s proceeding was frivolous, vexatious, brought in bad faith or unreasonable. The OHRC is not aware of any statutorily-provided right being subject to a fee (e.g. Employment Standards, Worker’s Compensation).
More and more, recent decisions of the HRTO have been ordering respondent parties to undergo human rights training using the OHRC’s e-learning modules. In late 2011, the OHRC launched two new versions of its popular e-learning module, Human Rights 101. The two new versions offer users information on human rights history, principles, legislation and policies, in Arabic and in Spanish. The OHRC is also working on another 11 languages – Italian, Korean, Punjabi, Portuguese, Somali, Tamil, Tagalog (Filipino), Urdu, Vietnamese, simplified Chinese and traditional Chinese. It has also made five of its brochures available in American Sign Language and Langue des signes québécoise video format.
Section 5 of the Ontario Human Rights Code provides that every person has a right to equal treatment with respect to employment without discrimination and harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
 In the zone: Housing, Human Rights and Municipal Planning, Appendix A. http://www.ohrc.on.ca/en/zone-housing-human-rights-and-municipal-planning/appendix-poverty-social-condition-and-human-rights-code
 In Jazairi v. Ontario Human Rights Commission, 1999 CanLII 3744 (ON CA), the Ontario Court of Appeal confirmed that the complainant’s opinions concerning the single-issue of the relationship between the Palestinians and Israel did not amount to a creed. However, the Court confirmed the importance of assessing each creed claim on its own facts and noted that whether or not some other political perspective that is made up of a cohesive belief system could amount to a "creed" was not before it. The court commented that would be a mistake to deal with such important issues in the abstract